Live broadcasts and performances aren’t per se copyrightable: Revisiting the fixation requirement

A recent Techdirt article discusses the role of broadcast listeners and viewers in preserving sports history.  The article’s main point seems to be an argument that allowing copying helps preserve historical moments.  The historical moment in question was the 1951 “Shot heard ’round the world;” also known as Bobby Thompson’s walk-off home run against the Dodgers that send the NY baseball Giants to the World Series.  This is an important point; copyright limits our ability to preserve history by creating barriers to copying works.1

The article’s vehicle for this point is the recording of a broadcast of that game by a listener.  This recording appears to be the only one we have.  Similarly, a Bing Crosby taping of the video broadcast of the 1960 World Series involving the Pirates appears to be the only copy of that broadcast left.

There’s one thing about this approach, however: Larry Goldberg, the travel agent who recorded the 1951 “Shot” by Thompson, and Bing Crosby may not be copyright infringers.

Both broadcasts were live and, at the time for both, it was not a regular practice to record broadcasts as they were happening.  Therefore, the only recordings might very well be these two simply because the radio and TV stations didn’t keep recordings themselves.

This allows us to revisit the concept of fixation: a threshold requirement for the existence of a copyright.

What is ‘Fixation?’

The Copyright Act of 1976 defines the subject matter of copyright as

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.  Copyright Act of 1976 § 102(a).2

The Act defines “fixed” in it’s definition section as

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission. Copyright Act of 1976 § 101.3

The essentials to take away from this is that a work of authorship must be recorded or written or kept by some method that allows it be be replayed, reread, or “re-perceived” by another person in the future before it can be protected by copyright.  This includes sound recordings, writings, drawings, photographs, sculptures, and more.

Why “Fixation?”

Fixation makes sense on the basic level because you can’t copy something unless it is in a perceivable form.  A work must exist in a tangible medium of expression before that work can be copied onto another tangible medium of expression.  This runs into some theoretical dissonance when it comes to performance or display copyrights, or derivative copyrights, but the basic mechanism of enforcing copyrights by prohibiting copies remains sound.

The fixation requirement also makes sense practically and policy-wise.  The words spoken in a friendly conversation on the street would be copyrighted without the fixation requirement.  Forcing authors to take an extra step to memorialize their work cuts down on abuse and encourages the author to memorialize the work for future generations.

Live broadcasts and performances do not meet the fixation requirement

A live broadcast of an event sends the audio out into the atmosphere as radio waves.  These waves continue out into space and grow weaker in power over distance.  They are not permanent or stable, nor do they permit the work to be communicated for more than transitory period.  The requirements of fixation cannot be met by live broadcasts of events such as baseball or football games.

Similarly, live performances do not meet the fixation requirement.  If I perform a new, un-written, free-form poem at a coffee house poetry slam, or perform a new song created in the moment at a concert, I do not have a copyright in that work.  These works have not been fixed in a tangible medium; they are ephemeral, just like my conversations with neighbors on the street.

How do artists and the NFL and MLB claim copyright, then?

Simultaneous recording of the transmission of a work fixes that work and, therefore, meets Copyright’s fixation requirement.  Recall the last sentence of the definition for “fixed:”

A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission. Copyright Act of 1976 § 101.4

Therefore, the NFL and MLB claim copyrights in the broadcasts of live games by simultaneously recording those broadcasts.  Similarly, if I simultaneously recorded my poem or song as I performed it then I would possess a copyright in that work.

What’s the scope of this copyright?

What actual work is copyrighted by the NFL, MLB, and myself when simultaneous recording occurs?  The clearest scope of this work is the sound recording or motion picture resulting from the recording process.  Clear copyright violations would ensue if another person directly copied a portion of that recording.  Less clear is the expression captured by the recording.

An NFL or MLB game recording is thin in the sense that it captures facts.  Football player A tackles football player B.  Baseball player A strikes out Baseball player B.  The game itself carries little to no expression.  The primary area of expression in the recording is likely the commentary offered by the broadcasters covering the game.

Therefore derivative works based off the game itself will not be subject to copyright violations.  If I write a news or opinion article using the broadcast as a reference then I am not violating the copyright held by the NFL or MLB.  I am writing about non-copyrighted elements of the copyrighted work.  If I write a play based on what occurred at the game I am similarly protected.

In contrast, the copyrighted work from the coffee house or concert possesses more than facts; an expressive work is embodied in the recording.  Therefore, copyright would extend to derivative works based on that recording.  An article reviewing the song that quotes portions of the lyrics would be subject to copyright requirements.  Fair use would allow the article, but fair use protections are not even needed in the sports article example above.  A play based on the song would be subject to derivative work restrictions and likely result in copyright infringement if proper licenses were not given.5

Why does this matter?

It often does not.  How many artists prepare music they’ve not written down in some form or another prior to a concert?  Or poetry performance?  Their live performances would be derivatives of these already-fixed works.

Similarly, the NFL, MLB, and their broadcasting partners (CBS, ESPN, ABC, FOX, etc.) all simultaneously record their broadcasts.  So do most radio broadcasters.

But this was not always the case — especially when it came to early radio and TV broadcasting.  These old broadcasts might have been recorded only by listeners; and these listeners were likely not copyright infringers.  After all, you can’t infringe a right that doesn’t exist.

Finally, the fixation requirement shows nuances in copyright law most people don’t understand.  Your expression of ideas is not always able to be copyrighted.  Yes, the Copyright Act of 1976 and later laws have made it easier to anyone and everyone to receive copyright protection, but those laws, as broad as they are, don’t encompass anything and everything ever said.

  1. The orphan works problem is an example of this negative side of copyright.  You can read some about legislation attempting to deal with this problem here. []
  2. Read it here [PDF]. []
  3. Read it here [PDF]. []
  4. Read it here [PDF]. []
  5. Fair use protections might apply, as would some others, but this is less likely than in the article example. []

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